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BISBEE — Attorneys prosecuting and defending U.S. Border Patrol Agent Nicholas Corbett’s murder case disagree whether the jury should be made aware of evidence that the victim had a tattoo.
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The matter will be argued during a pre-trial hearing Monday in U.S. District Court in Tucson. The two-week trial is scheduled to start Tuesday.
Prosecutors filed a motion dated Feb. 4 asking Judge David Bury to exclude evidence regarding the victim’s tattoo or any alleged gang affiliation because it would “only serve to confuse and prejudice the jury.”
The motion says Corbett has always maintained that he shot the victim from a distance of several feet, near the rear of his vehicle, when he believed the victim was going to throw a rock at him. But Corbett never mentioned he observed the victim’s tattoo or thought he was a member of a gang.
Sean Chapman, the lead defense attorney, filed a response Friday indicating that the defense intends to present testimony from Carlos Zayas, a lead agent in the Border Patrol sector intelligence unit who viewed a photo of a tattoo on the victim’s hand.
“In agent Zayas’ opinion, that specific tattoo is commonly known as the ‘La Vida Loca’ tattoo and is considered an indicator of street gang affiliation. Further, according to agent Zayas, gang members who are apprehended along the border tend to be more aggressive and violent during apprehension than illegal entrants who are not affiliated with gangs,” Chapman says.
He says the evidence is “highly relevant” to the case because Corbett claims he shot the victim in self-defense when he tried to throw the rock.
He also argues that because gang members tend to act in unison when confronted, the defense also should be permitted to cross-examine the victim’s two brothers and sister-in-law regarding their gang affiliation.
“The thrust of the state’s challenge to this evidence goes to its weight, not its admissibility. There is nothing to prevent the state from arguing that agent Zayas’s testimony is entitled to little weight when viewed against all of the other evidence admitted at trial. The jury is entitled to determine how much weight, if any, to give this evidence when it considers who was the first aggressor,” Chapman says.
Early this week, Tyrone Mitchell, one of the prosecuting attorneys, filed a reply to Chapman’s response stating that the gang/tattoo evidence should not be admitted because it would “inflame the jury with bias.”
Mitchell points out Corbett could not have seen the tattoos on the victim prior to shooting him because the victim was fully clothed and wearing gloves at the time of the encounter. As a result, the evidence of the tattoo on the arm and hand is irrelevant to the claim of self-defense because it had no bearing on his perceived threat of danger.
“In addition, the shooting at issue occurred as a result of attempted illegal entry into the United States, having nothing to do with gang-related violence, and thus, whether or not the tattoos in actuality could show gang affiliation is highly speculative and prejudicial,” he states.
Mitchell adds the jury is already likely to infer negative biases against the victim on account of his immigration status, and as a result the admission of evidence that he could be a gang member would ensure a judgment based upon “passion.”
Earlier this month, Mitchell filed a motion that asked the court to prohibit Border Patrol agent witnesses from testifying regarding use of force issues.
He states the court should limit their testimony to their involvement in the case and preclude them from offering any expert opinions.
On Friday, Chapman filed a response to a motion saying he does not object to Mitchell’s motion. He says the defense has identified patrol agent Peter Hermansen as an expert regarding Border Patrol policy as it relates to use of force and other issues.
“Counsel for the state has advised defense counsel that the state’s motion is directed to line Border Patrol agents that are witnesses on other matters in the case, but not Hermansen. The defense does not object to, and will not seek to introduce expert testimony from line agents in this case as to the use of force,” he says.
Also on Friday, Chapman filed a notice of intent to introduce evidence of the defendant’s good character. He says, “The profferred testimony will establish that agent Corbett is honest, level-headed and professional in the discharge of his duties as a Border Patrol agent.”
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